Arizona Bill Would Set the Stage to Reject Federal Acts

PHOENIX, Ariz. (Jan. 18, 2017) – A bill introduced in the Arizona House would set the stage for the state to refuse cooperation with federal acts.

Introduced by Rep. Bob Thorpe, House Bill 2097 (HB2097) would prohibit state participation or cooperation with any “action” of the United States government that constitutes “commandeering.”

The bill defines “action” as “an executive order issued by the president of the United States; a rule, regulation or policy directive issued by an agency of the United States; a ruling issued by a court of the United States; a law or other measure enacted by the Congress of the United States.”

The proposed law closely mirrors a state constitutional amendment passed in 2014. The amendment explicitly affirmed the state’s right to “exercise its sovereign authority to restrict the actions of its personnel and the use of its financial resources to purposes that are consistent with the Constitution.”

HB2097 takes an important step forward, but it has some flaws in its definition of commandeering. Easy technical changes to the bill in committee or on the House floor would give the bill serious immediate impact.

The bill incorrectly defines “commandeering.” Under the long-established anti-commandeering doctrine, supported by four major Supreme Court opinions from 1842 to 2012, the states cannot be required to use personnel or other resources to enforce or effectuate a federal act or regulatory program. In short, the feds ‘commandeer’ the state when they require it to handle enforcement of federal laws or implementation of federal programs. Constitutionality is not relevant to the definition of commandeering. The federal government can commandeer the states for constitutional purposes. The states often voluntarily take these actions, even though they don’t legally have to…